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Thursday, December 13, 2012

A military judge says details of the harsh interrogations of Khalid Shaikh Mohammed and four other terrorism defendants can't be mentioned in court. Human rights advocates object.

Khalid Shaikh Mohammed pictured in July at the U.S. prison at Guantanamo
Bay, Cuba. Details of his harsh treatment will not be permitted at his
terrorism trial.

WASHINGTON — The judge in the military commission case against Khalid Shaikh Mohammed
and four other suspected Sept. 11 plotters ruled that details of harsh
interrogation techniques used on them would be kept secret during their
trial, a decision that human rights advocates called an attempt to hide
the fact that the men were tortured.

The order, signed by Army Col. James L. Pohl on Dec. 6 and made public Wednesday, represents a clear victory for U.S. military and Justice Department
prosecutors in the opening round of pretrial disputes. The first and
only trial in the Sept. 11, 2001, terrorist attacks could begin as soon
as next year.

Prosecutors had wanted all information about the five men's arrests
and treatment at so-called black sites abroad to remain classified. Pohl
agreed even though some government officials have acknowledged that
Mohammed, for instance, was waterboarded 183 times after his 2003
capture in Pakistan. Waterboarding simulates drowning; many consider it torture.

Nevertheless, Pohl ruled that
"enhanced interrogation techniques that were applied to the accused …
including descriptions of the techniques as applied, the duration,
frequency, sequencing and limitations of those techniques," would remain
classified. Nor will he permit the defendants or their attorneys to
discuss those matters in legal papers or open court.

"Names, identities and physical descriptions of any persons involved
with the capture, transfer, detention or interrogation" of the accused
will not be released, he said, nor will any "information that would
reveal or tend to reveal the foreign countries" where the suspects were
held before their transfer to the prison at the U.S. Naval Base at Guantanamo Bay, Cuba.

His "Protective Order No. 1" marks one of the most significant
rulings in a case with worldwide interest in how the U.S. handles
terrorism suspects as families await justice for nearly 3,000 loved ones
killed in the airliner attacks at New York City's World Trade Center, the Pentagon outside Washington and a farm field in western Pennsylvania.

Defense lawyers, the American Civil Liberties Union and a group of news organizations — including the Tribune Co., owner of the Los Angeles Times — had urged the judge to permit disclosure of this information.

"We're profoundly disappointed," said Hina Shamsi, an ACLU lawyer,
adding that she would probably appeal the protective order. "The
government wanted to ensure that the American public would never hear
the defendants' accounts of illegal CIA torture, rendition and detention, and the military judge has gone along with that shameful plan."

Eugene Fidell, a military law expert at Yale Law School, said many
would view the ruling as the government's attempt to try the men in
secrecy despite new military commission safeguards under the Obama
administration that promised transparency.

"I'm quite uncomfortable with rulings that are this sweeping," he
said, "and military law on this subject is not friendly to blanket
orders. It's supposed to be done with a scalpel rather than a meat
cleaver."

He added that even if the complex trial opened in 2013, it would come 12 years after the attacks.

"We've all been drumming our fingers on the table for this train to
leave," he said. "The length of time for the wheels of justice to turn
on these prosecutions is scandalous and deeply upsetting to the families
of the victims."

But Army Lt. Col. Todd Breasseale, a Pentagon
spokesman, said the order detailed the law and reasoning the judge
applied after carefully reading legal briefs and hearing oral arguments.
And he said it mirrored how classified information was routinely kept
out of federal courts in the U.S.

"He has done what all courts do to responsibly handle national
security information while also ensuring both that the accused will
receive a fair trial and that the proceedings will be as open and public
as possible," Breasseale said.

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